UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-11482
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL BURTON JONES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(2:96-CR-23-2)
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August 21, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Paul Burton Jones appeals his conviction and sentence for
conspiracy to transport, ship, receive, or distribute, by computer,
visual depictions of minors engaging in sexually explicit conduct,
in violation of 18 U.S.C. § 371, and for two counts of transporting
child pornography, in violation of 18 U.S.C. § 2252(a)(1). He
contends that the evidence is insufficient to sustain his
convictions on the substantive counts; that the district court
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
erred by admitting into evidence a photograph depicting a female
who had undergone an autopsy; and that the district court erred by
increasing his offense level for distribution of child pornography,
depictions portraying sadistic or masochistic conduct, and
obstruction of justice.
Jones’ challenge to the sufficiency of the evidence fails
because the jury was entitled to reject the evidence supporting his
alibi defense. See United States v. Layne, 43 F.3d 127, 130 (5th
Cir.), cert. denied, 514 U.S. 1077 (1995).
Jones’ contention that admission of the autopsy depiction was
an abuse of discretion, because the Government did not prove that
the female depicted was a minor and that the depiction was not of
sexually explicit conduct, is without merit. Considering the
graphic nature of the numerous depictions of children engaged in
sexually explicit conduct, which were admitted into evidence, and
even assuming error, it was harmless. See United States v. Torres,
114 F.3d 520, 525-26 (5th Cir. 1997).
The district court found that Jones exchanged child
pornography with others “with the hope of obtaining child
pornography himself in the process”. [5 R 66] Accordingly, it
enhanced Jones’ offense level by five levels under U.S.S.G. §
2G2.2(b)(2), which provides that, “[i]f the offense involved
distribution, increase by the number of levels from the table in
§2F1.1 corresponding to the retail value of the material, but in no
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event by less than 5 levels.” U.S.S.G. § 2G2.2(b)(2). Jones
contends that the district court erred by applying the enhancement
because there was no evidence of widespread distribution or
distribution for pecuniary gain.
Jones relies on the commentary, which provides that
“‘[d]istribution,’ as used in this guideline, includes any act
related to distribution for pecuniary gain, including production,
transportation, and possession with intent to distribute.”
U.S.S.G. § 2G2.2, comment. (n.1). In United States v. Kimbrough,
69 F.3d 723 (5th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct.
1547 (1996), our court affirmed a § 2G2.2(b)(2) enhancement where
the defendant had set up a bulletin board system designed to
distribute and receive child pornography, even though there was no
evidence that the defendant had engaged in commercial distribution.
Id. at 734-35. And, in United States v. Canada, 110 F.3d 260 (5th
Cir. 1997), our court affirmed an enhancement under § 2G2.2(b)(2),
where the purpose of the distribution was to entice a 13-year-old
into having sex with the defendant; but, we did not decide whether
distribution alone is enough to apply the enhancement or whether an
“additional element must be present”. Id. at 263 & n.4. We need
not decide that question in this case, either, because the
enhancement was not based on mere distribution. Jones’ distribution
of child pornography for the purpose of receiving other child
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pornography from the recipients is sufficient to trigger the
enhancement.
The district court did not clearly err by finding that a
depiction of a nude, blindfolded female, with bound legs, hanging
from the ceiling with handcuffs, was a depiction of a minor.
Accordingly, it did not err by applying a four-level enhancement
under § 2G2.2(b)(3), for material portraying sadistic or
masochistic conduct.
Finally, the district court did not clearly err by enhancing
Jones’ offense level for obstruction of justice, under U.S.S.G. §
3C1.1, based on finding that Jones deleted pornographic depictions
from his computer after his co-defendant was arrested.
AFFIRMED
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